COMMENTARY: Bo's 'lessons' for legal work

By Sue

Macomb Legal News

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By Dave Askins

Legendary University of Michigan football coach Bo Schembechler was not a lawyer.

But I think Schembechler’s famous speech on the importance of teamwork extends naturally to a legal team: “No [attorney or client] is more important than The Team. The Team, The Team, The Team, and if we think that way, all of us...We’re gonna win the [lawsuit] because we’re gonna play as team.”

That insight came after I initiated a lawsuit as a Team of One—a non-lawyer, pro se plaintiff. I had just one page in my playbook: Quarterback runs the ball.

The final score of Askins v. Ann Arbor Downtown Development Authority was recorded recently in a circuit court order tallying four separate violations by the DDA of three different state statutes: Michigan’s Open Meetings Act (OMA), Michigan’s Freedom of Information Act, and the Downtown Development Authority Act. The fact pattern included a method of making decisions that violated the core requirement of the OMA — that decisions of a public body must be made at a meeting of that body that is open to the public.

But that final score was made possible only by a key addition to The Team late in the game: I handed the ball off to an actual attorney, Mariah Fink.

Here’s some play-by-play commentary on the DDA lawsuit from my vantage point on the field.

The case kicked off when I filed the initial papers in November 2014. The DDA’s first defensive play was an all-out blitz — a motion to dismiss all the claims. In my response papers, I was keen to provide adequate detail and argumentation, because I understood the consequence of failing to persuade the court at this stage: The game would be over before it began.

Under that kind of pressure, I chafed under the 20-page limit for response briefs. Frankly, any limit would have been constraining. To be clear, I do think it is reasonable for court rules to impose some kind of page limit. But in this instance, I had to spend some of my pages refuting DDA claims that I would have considered plain factual errors, if a reporter of mine had submitted them as part of an article that I was editing.

For example, from the DDA’s motion papers: “The Open Meetings Act provides no clear definition of such terms as ‘decision,’ ‘deliberation,’ or ‘public policy,’ …” But here’s the statutory text describing the word: “15.262 Definitions. Sec. 2. As used in this act: … (d) ‘Decision’ means a determination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, order, ordinance, bill, or measure on which a vote by members of a public body is required and by which a public body effectuates or formulates public policy.”

In any event, I needed more than 20 pages. And just as calling timeout in a football game gives you some additional seconds if the play clock is winding down, the court rules provide a way get some additional pages, if you are out of space. It’s a play I imagine Legal News readers execute routinely—a Motion for Leave to File Additional Pages. But for me, it was not routine. I’ll gloss over a harrowing ordeal involving proper filing sequence for different sheets of paper. However, my thoughts on the DDA’s defense were ultimately submitted in 23 pages, properly blessed with a judge’s order granting leave to file those three extra pages.

The day before the January hearing on the motion to dismiss, the DDA filed a supplemental brief. I suppose that is the equivalent of altering the defensive alignment just before the snap, to try to confuse the quarterback. And as I understand the court rules, I could have insisted on an adjournment. But I did not, because the hard part was already done: I had re-learned how to knot a necktie. So at least I would not be appearing without a proper uniform.

After the hearing, we waited a bit more than two months. When the preliminary ruling came, it was clear that the all-out blitz by the DDA had failed. The DDA had let me scramble my way practically into the end zone. Instead of dismissing the claims, the court ruled clearly in my favor — on the DDA Act and the Freedom of Information Act issues. The court also found that the DDA had violated the Open Meetings Act, to the extent that it had failed to maintain meeting minutes.

But I felt I’d put the nose of the football past the goal line on the core issue of the OMA as well: The DDA Board had made decisions on its executive director’s salary with a method that violated the OMA. As in football, the legal system provides for a kind of appeals process internal to the game. My Motion for Reconsideration was denied, but my Motion for Leave to Amend was granted.

In the restarted game, a single issue remained: Whether the DDA violated the core requirement of the OMA. I sized it up as a first-and-goal situation. But the DDA invited me to punt, asking me to concur with its second Motion for Summary Disposition. I’m not some kind of football genius, but punting through the end zone from the 1-yard line seemed like a terrible play to call. Now, I was certainly tired — from running the ball myself on every play. But frankly, I wasn’t sure what play to call next.

So I called attorney Mariah Fink.

When Mariah agreed to lace up her cleats for my cause, she first did something that’s against the rules in football, but smiled upon in the legal system. She huddled with the other team to talk about the next play. On the ensuing down, she took a direct snap, and ran untouched up the middle into the end zone, just the way it had been drawn up in the stipulated order. That ended the game and the lawsuit. She did not spike the ball. ————————Dave Askins is the former editor of The Ann Arbor Chronicle, an online publication that ceased operations in 2014, some six years and more than 10 million words after it began.